Authored By: Regomoditswe Phala
University of Pretoria
Full case name: Minister of Home Affairs v Fourie
Citation: 2006 (1) SA 524 (CC)
Court: Constitutional Court of South Africa
Date of judgement: 1 December 2005
Bench Composition: [Langa CJ, Moseneke ACJ, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J, and Yacoob J]
Judgement delivered by Sachs J
Introduction
Minister of Home Affairs v Fourie is a landmark case in South African Law as it dealt with recognition of same-sex marriages as valid. Marriage has long been part of human nature and thus always has been recognized by the law and governed by strict rules. Prior to 2005 South African matrimonial system was governed by the Marriage Act 25 of 1961, which explicitly prohibited same-sex couples from officially marrying before the law[1]. This inequality on the ground of sexual orientation and gender was common nature in the pre-democracy era but after the Constitution was established, it was clear this common law principle was against several provisions of the Constitution which prioritized equality among its founding provisions[2].
This case summary will provide detailed analytical summary of the arguments of the parties, judicial reasoning through comparison of the Constitutional rights of equality and dignity to the religious freedom and interpretation of marriages to decide whether the Constitutional validity of equal matrimonial rights is paramount to religious beliefs and traditional common law interpretation of marriages[3].
Facts
Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys had found themselves deeply in love and had been in a relationship for well over a decade and like any committed couple they decided to marry each other under the then Marriage Act. The issue at that time was the fact that they are both women, this was an issue since the law at that time did not permit same-sex couples to legally get married as the Marriage act only recognized the husband and wife as fit for marriage[4]. The couple applied to the High Court to get married and challenged the common law definition of marriage the claim was found to be in favor of the applicants, but the matter required confirmation of the Constitutional Court in terms of s 172 (2) (a) of the Constitution [5].
The Constitutional court refused the claim on the basis that the SCA needed to be approached first, and the applicants took the matter to the Supreme Court of Appeal. “All five judges held that the exclusion of same-sex couples from the common law definition of marriage constituted unfair discrimination against them” The case then proceeded to the Constitutional Court and was heard at the same time as the case of Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others which had relatively similar facts[6].
Legal issues
Whether or not the failure by the common law and the Marriage Act to provide the means Whereby same-sex couples can marry, constitutes unfair discrimination against them.
Whether the prohibition of marriages for same-sex couples violated section 9 and 10 of the Constitution
What is the appropriate remedy for the unconstitutionality?[7]
Arguments Presented
Appellants’ Arguments:
The appellants or the state collectively, argued and opposed the access of same-sex couples to the common law institution of marriage as it considered it an injustice, on the basis that the SCA were in the wrong to conclude that the non-recognition of same-sex couples to marry was a violation of their rights. They argued that the lack of legal recognition and consequences of their same-sex family relationship was responsible for violations not the lack of access to marriages[8].
The appellant continued to acknowledge the harsh realities of discrimination same-sex couples suffer but contended that granting them access to a long existing common law institution of marriage is not the answer. They further argued that judicial inquiry would be legally unproductive and the issue since it is dealing with a statutory claim from the Marriage act should be left to extensive public debate by parliament and should be resolved through legislative frameworks[9].
Respondent’s Arguments:
The respondent (Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys) respectively argued that the common law definition of marriage and section 30 of the Marriage Act 25 of 1961 was not consistent with the Constitution of the Republic of South Africa[10]. They argued that the exclusion from the institution of civil marriage amounted to unfair discrimination on the grounds of sexual orientation and perhaps even marital status and through that infringed section 9 of the Constitution and they further argued that the unjustifiable exclusion violated their right to dignity (Section 10)[11],as it deprived them of the right of recognition on par with heterosexual couples [12].
The respondents argued that Gay and Lesbian people have suffered severely at the hands of discrimination and they are as very much capable of sharing love, forming intimate relationships, and building families as heterosexual couples can, thus excluding them the right to marry while heterosexual couples are allowed is clearly a violation of their right to equality as stated by the S9(3) of the Constitution. The Respondent’s argument requested the court to consider the validity of the common law definition of marriage and relevant legislative provision and provide a remedy which allows same-sex couples the right to marry[13].
Court’s Reasoning and Analysis
The Court, after careful consideration of the Constitutional aspects and subjective rights that were under threat, adopted a conscious interpretation of the Constitution. It viewed equality and human dignity as founding values of the democratic system, and the law of the Constitution is paramount to all others. The court emphasized that exclusion of those rights was not merely deprivation of legal benefits, but of values so deeply emphasized in the Constitution that the Constitutional Court cannot Ignore. It further stated that gay and lesbians have been a minority group that has for long faced societal discrimination on the grounds of sexual orientation and the Constitution which binds all and everyone who resides in South Africa provides that equal status must be held by everyone regardless of sexual orientation[14].
The Constitutional Court furthered summarized what it referred as facts that gay and lesbian people are subject to and this includes right to dignity and equality, it acknowledged that the Constitution do not directly have a right to marry, but it has the responsibility of protecting the value of equality[15]. The court referenced the case of Satchwell the “issue was whether the non-inclusion of same-sex partners in a statute providing pension rights to the surviving spouses of Judges was discriminatory”, the court decided that an exclusion would be unfair discrimination[16]. The court through their analysis highlighted 4 grounds that the exclusion of same-sex couples must be analyzed ,it acknowledged the rapid growth of family formations, the history or marginalization and persecution of queer people, the lack of comprehensive legal regulation of laws regarding gay and lesbians and lastly the legacy of the cruel history of South Africa because of discrimination, the Constitutional court was able determine that a need to develop a society based on equality is imperative[17].
The Constitutional Court highlighted that a democratic, universalistic and caring society must embrace people for who they are, and penalizing someone for their sexual orientation is a gross violation of equality[18]. The learned bench of the Constitutional Court established that the institution of marriage is not merely a contract between partners but has many legal benefits and consequences such as matters relating to property regime, tax and inheritance etcetera and everyone entitled to those rights[19]. The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples”[20]. The court had to conclude that the appropriate remedy was to suspend the invalidity for twelve months so parliament can enact a legislation that allows same-sex partners the freedom to marry[21].
Judgement and Ratio Decidendi
Judgement
The Constitutional Court unanimously found that Section 30(1) of the Marriage act and the common law rule that only heterosexuals could get married was in direct conflict with section 9 (Equality) and 10 (Dignity) of the Constitution. The statutory proviso and Common law principle was found to be unconstitutional as it unjustifiably infringed the aforementioned Constitutional rights. The court ordered parliament to enact a statute allowing same-sex partners the right to marry and this led to the Civil union act 17 of 2006[22].
Ratio Decidendi
The exclusion of Same-sex couples from the institution of marriage is a violation of the right to equality (s9) and right to dignity (s10) as it amounts to unfair discrimination that is not consistent with the Constitution[23].
Critical Analysis
Significance of the Decision
The decision on the Fourie case highlights the acknowledgement of a past filled with inequality and unfair discrimination, the Constitutional court, through their reasoning showcase consideration of a cruel past wrinkled by acts of prejudice and inequality[24]. The decision significantly impacted South African Law by exposing the gaps in judicial reasoning as they same courts which are bound by the Constitution argued against a rule so entrenched within our legal system due to the political and social history of our country simply because it regarded the institution of marriage as reserved for heterosexual partners. The suspension of the declaration of invalidity was obscure considering that the Constitutional Court’s main purpose is to deal with such matters[25]. Further significance of the decision lies in the fact that the judgement has been quoted in a US case of Obergefell v Hodges[26].
Critical evaluation and Impact
While the Judgement was a correct one in the eyes of justice and the sovereign Constitution, the decision has been heavily criticized for allowing parliament to enact a statute which gave same-sex partners the right to the institution of marriage while the Constitutional Court in their power could have developed the common law position and amended the relevant act[27]. The Court’s reasoning regarding the paramountcy of s9 and s15 can be commended as the equality cannot be subordinated to religious conviction[28].The immediate impact came into effect through the enactment of Civil Union Act which caused criticism as certain provisions only applied to same-sex partners and many scholars have regarded this separation as unnecessary[29].
Conclusion
Minister of Home Affairs v Fourie served as a landmark case as it allowed same-sex partners the right and liberty to get married, the appellant’s argument stating that the institute of marriage was traditionally reserved for heterosexual partners was met with disagreement from the respondents who argued that the exclusion of same-sex partners from marrying was not only a violation of their right to equality but also dignity. The court successfully laid judgement on the issue after extensive discussion the paramountcy of equality and common law practice they declared section 30(1) of the Marriage and the common law rule unconstitutional. The decision was made to suspend the matter for 12 months until parliament enacted an act which eventually led to the Civil Union Act 17 of 2006[30].
Reference(S):
Case Law
Fourie and another v Minister of Home Affairs and others [2005] 1 All SA 273 (SCA)
Minister of Home Affairs and Another v Fourie and Another
Obergefell v. Hodges, 576 U.S. 644 (2015)
Legislation
Civil Union Act 17 of 2006
Marriage Act 25 of 1961
The Constitution of the Republic of South Africa
[1]Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) par 3-4
[2] The Constitution of the Republic of South Africa
[3] Minister of Home Affairs and Another v Fourie and Another [see par 6]
[4] Ibid 1-2
[5] Ibid 8
[6] Ibid 12
[7] Ibid 45
[8] Ibid 35
[9] Ibid 36
[10] Marriage Act 25 of 1961
[11] The Constitution of the Republic of South Africa
[12] Fourie and another v Minister of Home Affairs and others [2005] 1 All SA 273 (SCA) para 15-17
[13] Minister of Home Affairs and Another v Fourie and Another {paras 41-44}
[14] Ibid 48-50
[15] Ibid 47-49
[16] Ibid 46
[17] Ibid 59
[18] Ibid 60
[19] Ibid 63-67
[20] Ibid 70
[21] Ibid 115
[22] Ibid 78-82
[23] Ibid 78
[24] Ibid 59
[25] Ibid 132-134
[26] Obergefell v. Hodges, 576 U.S. 644 (2015)
[27] Minister of Home Affairs and Another v Fourie and (para 139a)
[28] Ibid 92-94
[29] Civil Union Act 17 of 2006
[30] Minister of Home Affairs and Another v Fourie (para 163)
